I’ll admit I foolishly allowed myself to be misled. Despite almost 40 years of practicing immigration law, I didn’t anticipate the robustly revanchist re-grabbing of lost immigration territory and status, or the truly audacious intent and breadth of the April 18, 2017 “Presidential Executive Order on Buy American and Hire American (BAHA).” As interpreted by officers adjudicating requests for immigration benefits at U.S. Citizenship and Immigration Services (USCIS), BAHA would “Make America Great Again” by taking us back to the pre-1965 days of racial and national origin discrimination, xenophobia, and jingoism, as was then embodied in America’s immigration laws.

Reading BAHA’s scant immigration provisions last April, I viewed it then as much a brouhaha about nothing. It merely called for inter-departmental proposals outlining potential administrative and legislative changes to the H-1B visa category that would “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries,” and, “[consistently] with applicable law . . . [would] protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.” Since none of these proposals could come into existence without new legislation or new rulemaking under the Administrative Procedure Act (requiring a lengthy period of notice and an opportunity for stakeholder comment), I surmised that nothing much would change in the short-term.

To be sure, I noted BAHA’s ominous enforcement-minded tone (“it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad”). But it seemed to me that, given the long-standing “culture of no” and gamesmanship at USCIS, BAHA was merely a ritualistic shot against the bow signaling more of the same. Boy oh boy was I wrong. BAHA has apparently awakened USCIS immigration officers as if it were a dog whistle, a silent reveille alerting them loud and clear – just like their recently “unshackled” colleagues charged with immigration enforcement – that the cuffs are off. Since BAHA was issued, USCIS immigration officers seem to view themselves as henceforth free to apply even more “innovative” and superficially plausible, if extralegal and disingenuous, reasoning to deny work visa status and employment-based green cards at whimsy and will.

Six months ago I won the lottery — the H-1B visa processing lottery for skilled foreign workers. I called my thrilled parents and celebrated with friends. I’m from northeastern China and have an M.B.A. from Stanford, and was planning to stay in Silicon Valley to help start a company based on a promising new technology to improve the use of data. I was overjoyed because, historically, being selected in the lottery was a near guarantee that an applicant could remain in this country at least three more years.

But at the end of July, I received the dreaded Request for Further Evidence from immigration authorities. I provided the extra information that United States Citizenship and Immigration Services asked for. In September, I got another request. I complied again. Finally, on Oct. 11, half a year after my celebration, I learned I had been denied a visa.

After earning law degrees in China and at Oxford, after having worked in Hong Kong as a lawyer at a top international firm, after coming to United States three years ago for an M.B.A. and graduating and joining a start-up, I was given just 60 days to leave the country. I have 17 days left.

But who’d a thunk that adjudicators would target for denial foreign workers currently in lawful visa status applying to continue working in the same job with the same employer? After all, doesn’t BAHA’s § 1(e) define “workers in the United States” and “United States workers” as described in 8 U.S.C. § 1182(n)(4)(E), to include not only green card holders, refugees, and asylees, but also authorized immigrants? And doesn’t BAHA’s § 1(c) define “petition beneficiaries” in a future-focused way as “aliens petitioned for by employers to become nonimmigrant visa holders with temporary work authorization under the H-1B visa program”? (Emphasis added.)

Well I was both naïve and unimaginative, given that a new, post-BAHA USCIS policy memo has apparently stripped all currently authorized nonimmigrant workers of their status as protected “U.S. workers” under § 1(e). See, USCIS Policy Memorandum PM-602-0151, October 23, 2017 (“Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status”). In this policy memo, USCIS floated the spurious claim that its earlier 2004 and 2015 guidance (requiring that officers defer and approve, except in limited circumstances, all prior approvals of work-visa status as long as the job duties and employer remain the same) somehow shifted the burden of proof away from the individual and imposed it on the agency. This burden-of-proof argument rests on shaky terrain. Apparently, the effort is simply too much for USCIS, despite ever-escalating user fees “to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same.”

In other words, USCIS now asserts that merely doing its job, i.e., by reviewing a nonimmigrant’s entire case history, somehow shifts the burden of proving eligibility to the agency. Not so. The statutory burden on the petitioner or applicant to establish visa eligibility remains the same. Rather the minimal duty imposed on USCIS is to retrieve the prior file and read it. If that is administratively burdensome, then a reasonable new policy would instead suggest to stakeholders that, if deference to a prior approval is desired, then the petitioning employer must include a copy of the prior submission and approval notice with each request for extension of status. Problem solved.

I will decide all cases based on the evidence of record after having read the file carefully and applied the immigration laws, regulations and agency policy memorandums in a spirit of fidelity to Congressional intent and just compassion for the people and businesses who will be affected by my decision.

I will not issue requests for evidence merely as a means of pushing a case off my desk.

I will decide cases promptly and remember that justice delayed is justice denied.

I will not judge the case by the size of the company or the nationality of the applicant.

I will not issue decisions that contradict settled agency policy guidance unless a new law or a novel set of facts justify such action.

When I am duty bound to deny a case, I will provide a well-reasoned and detailed explanation of the grounds for my decision.

As immigration officials ponder my tender offer, I urge each of them to recall the oath of office as a federal employee. In the oath each of them did “solemnly swear (or affirm) [to] support and defend the Constitution of the United States against all enemies, foreign and domestic; . . . bear true faith and allegiance to the same; . . . take this obligation freely, without any mental reservation or purpose of evasion; and . . . well and faithfully discharge the duties of the office on which [s/he is] about to enter.”

I thus implore immigration officials not to destroy America to save it. I ask them to recall that our cherished American heritage stems both from the rule of law, first embodied some 800-plus years ago in the Magna Carta, and from our cherished exceptionalism as a nation of immigrants. If immigration officials nevertheless persist in savaging decades of immigration law and policy, then I urge them to consider my intentionallynonviolentreference to the Urban Dictionary‘s definition of the Latin phrase, sic semper tyrannis, perhaps wrongly attributed to Brutus (but also uttered very unjustly by John Wilkes Booth):

granting voluntary consent to enter any non-public areas at a place of labor, except if presented with “a judicial warrant,”

granting voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without “a subpoena or judicial warrant,” except if an “immigration agency” (most often, this would be Homeland Security Investigations [HSI], an agency of U.S. Immigration & Customs Enforcement [ICE]) issues a Notice of Inspection (NOI) of Employment Eligibility Verification Form I-9s and other records required to be maintained under federal immigration regulations in order to verify employment eligibility;

Posted Notice of Worksite Inspection

Posta notice at the worksite in the language the employer normally uses to communicate employment-related information to employees, within 72 hours of receiving an NOI, communicating the following information to employees:

An immigration agency, identified by name, has issued an NOI (a copy of which must also be posted at the same time) and will conduct inspections of I-9 forms or other employment records.

The date that the employer received the NOI.

The “nature of the inspection” to the extent known.

Notice to the Union

Givewritten notice to the “employee’s authorized representative,” namely, the exclusive collective bargaining representative, if any, within 72 hours of the immigration agency’s issuance of an NOI:

Delivery of Requested Copy of the Notice. Provide any employee, upon reasonable request, with a copy of the NOI;

Provide Notice of Suspect Documents. Within 72 hours of the employer’s receipt of a written immigration agency notice informing the employer of the results of the agency’s Inspection of the I-9s and the employer’s employment records, typically entitled, a “Notice of Suspect Documents” (NSD), provide a written notice to certain “affected employees” who apparently lack work eligibility (and any collective bargaining representative ) of the obligations of the employer and the affected employees, containing the following information:

A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee.

The time period for correcting any potential deficiencies identified by the immigration agency.

The time and date of any meeting with the employer to correct any identified deficiencies.

Notice that the employee has the right to representation during any meeting scheduled with the employer.

No Re-Verifying Current Employees

Refrainfrom re-verifying the employment eligibility of a current employee at a time or in a manner not required by the employment eligibility verification provisions of the Immigration Reform and Control Act of 1986, 8 USC § 1324a(b), or that would violate any E-Verify Memorandum of Understanding the employer has entered into with the Department of Homeland Security.

* * *

To be sure, AB 450 offers sops feigning fealty to federal immigration law. Replete in the law are exceptions stating that these new mandates are not to be interpreted as requiring the employer to violate federal immigration law. California’s political leaders apparently believe that U.S. immigration rules– in the aspirational words of the Fifth Circuit court federal Court of Appeals – are “comprehensible by intelligent laymen and unspecialized lawyers without the aid of both lexicon and inner-circle guide.”

Regrettably, they are anything but. The court said in this 1981 decision in words that ring ever more true today:

Whatever guidance the [immigration] regulations furnished to those cognoscenti familiar with procedures, this court . . . finds that they yield up meaning only grudgingly and that morsels of comprehension must be pried from mollusks of jargon. Kwon v. INS, 646 F. 2d 909 (5th Cir., 1981). (Emphasis added.)

AB 450’s supporters, the California Labor Federation and Service Employees International Union, defend the law because it adds what they apparently see as reasonable but necessary burdens on employers in order to protect the state’s sizable population of undocumented employees from immigration raids and the abusive practices of some employers:

“[M]illions of union members are immigrants and worksite immigration raids undermine workers’ rights in significant ways: they drive down wages and labor conditions for all workers, regardless of immigration status; they interfere with workers’ ability freely to exercise their workplace rights; they incentivize employers to employ undocumented workers in substandard conditions because the threat of immigration enforcement prevents workers from complaining; they undermine the efforts of the state to enforce labor and employment laws.”

However laudable this legislative goal, AB 450 would be better titled, the “Have Your Immigration Lawyer on Speed Dial Act,” because that is how this new law will likely play out. This is probably why the Society for Human Resource Management (SHRM) steadfastly opposed AB 450, stating:

“[W]hile well intentioned, [AB 450] will add a host of unnecessary burdensome requirements, create many logistical challenges, and could possibly force human resource professionals to decide between abiding by federal law or state law.”

Consider some of the issues this new law will raise.

Role of California state courts to interpret federal immigration laws? AB 450 grants the California Labor Commissioner or the state’s Attorney General the exclusive authority to initiate civil actions to enforce its provisions. Assuming that the courts find that this law can peacefully coexist with Congress’s plenary authority over immigration law, then presumably California state administrative officials and courts will now be required to decide whether or not particular actions by employers are “required” by federal immigration law.

Distinguishing between a subpoena and a judicial warrant? AB 450 permits employers to grant federal immigration officers access to non-public worksite areas if the employer is presented with a “judicial warrant.” Access to a company’s employee records, however, is not prohibited under the law if immigration officers tender to the employer a “subpoena or judicial warrant.” Few employers likely realize, however, that a subpoena may be issued by a court or by administrative agency officials.

Under Immigration and Nationality Act § 235(d)(4); 8 U.S.C. §1225(d)(4), immigration officers are empowered to issue administrative subpoenas for books and records. If an employer refuses to comply with an administrative subpoena, however, then immigration officials can only enforce it if they persuade a federal judge to issue a judicial order. Yet – in the real world – when federal immigration agents issue an administrative subpoena carrying an official federal seal and, by its terms, demanding access to business records, pity the unsophisticated HR manager who violates California law if s/he “voluntarily” provides the business’s employee records.

Who are “immigration enforcement agents?” AB 450 does not define the term “immigration enforcement agent.” The phrase undoubtedly refers to officers of ICE and HSI. Less clear is whether other federal immigration officers should be characterized as immigration enforcement agents under this law. Federal officers with immigration enforcement authority — all of whom have taken an oath to “well and faithfully discharge [their] duties” — may hail from any number of Executive Branch departments and agencies. Under 8 CFR § 1.2, USCIS has set forth a broad definition of DHS employees who are designated by regulation as “immigration officer[s].” These include: “immigration enforcement agents, forensic document analysts, immigration agents (investigations), immigration enforcement agents, immigration inspectors, immigration officers, immigration services officers, investigator, intelligence agents, intelligence officers, investigative assistants, and special agents, among others.”

Conceivably, AB 450, by its terms, could also extend to federal officials performing immigration functions within the Departments of State, and Labor. Moreover, the current practice of one Department of Homeland Security (DHS) sub-component, the Fraud Detection and National Security (FDNS) Directorate of United States Citizenship and Immigration Services (USCIS), discussed frequently and critically in this blog, to conduct unannounced “administrative site visits” or “on-site compliance reviews,” raises immediate concerns about its officers’ future interactions with California employers.

Although FDNS asserts that it is not an immigration enforcement agency, a current job opening for the position, “Immigration Officer (FDNS),” – accessible here, and if the posting is taken down, also here – confirms that, “[every] day, our Immigration Officers (FDNS) . . . identify, articulate, and pursue suspected immigration benefit fraud.” Moreover, employers seeking to hire foreign workers must sign petitions under penalty of perjury for virtually every request for immigration benefits submitted to USCIS, requests which contain the acknowledgment, “I also recognize that any supporting evidence submitted in support of this petition may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews,” see e.g., the Petition for a Nonimmigrant Worker (Form I-129 Part 7, p. 6).

Indeed, the task of immigration site inspectors, according to FDNS, are to:

Verify the information, including supporting documents, submitted with the petition;

Verify that the petitioning organization exists;

Review public records and information on the petitioning organization;

Conduct unannounced site visits to where the beneficiary works;

Take photographs;

Review documents;

Speak with the beneficiary [the nonimmigrant worker sponsored under an employment-based petition by an employer]; and

The conceit asserted by FDNS that it is not an immigration enforcement agency is also belied by this disclosure on its website:

USCIS has formed a partnership with Immigration and Customs Enforcement (ICE), in which FDNS pursues administrative inquiries into most application and petition fraud, while ICE conducts criminal investigations into major fraud conspiracies. (Emphasis added.)

Even if a line can fairly be drawn between FDNS’s pursuit of immigration fraud and ICE’s activities in conducting criminal investigations, the use by AB 450 of the term, “immigration enforcement agent,” suggests at the very least an agency relationship between FDNS (the agent) and ICE (the principal).

Thus, a California employers could well face liability under AB 450 if it voluntarily consents to an FDNS officer’s request for access to the beneficiary’s “physical workspace,” the opportunity take to “take photographs” of the workspace (which routinely happens), and conduct a “[r]eview [of] records.” Yet, if a California employer were to refuse such a request, FDNS officers will no doubt report that refusal to USCIS adjudicators, who then routinely issue a notice of intent to deny or revoke work-visa petition approval. Notices of intent to revoke approval are especially problematic, because if they cannot be overcome in light of the obvious state law impediments in AB 450, then USCIS will revoke the employment authorization of the particular beneficiary. The result of a revocation is that the employee must be terminated upon the employer’s receipt of the notice of revocation, and that termination may constitute a failure on the part of the beneficiary to maintain lawful nonimmigrant status, which itself would trigger an obligation to depart the United States immediately with his or her immediate family members, or face removal from the United States at a hearing initiated by ICE before an Immigration Judge.

These problems become even more complicated if the employer provides facilities for its own workers and for the employees of any of its contractors, consultants, staffing companies, or vendors. While AB 450 does not prohibit a California employer from voluntarily sharing whatever information it might possess about the employees of its contractors, this new law, by its terms, mandates, on penalty of civil fine, that the employer refuse to grant voluntary consent to “enter any non-public areas at a place of labor” – apparently irrespective of the party employing the particular workers at the place of labor. Such a refusal likewise under current USCIS practice would lead to a similarly insurmountable notice of revocation, thereby terminating the employment authorization and nonimmigrant status of a contractor’s who was the subject of an FDNS unannounced site visit, and conceivably, resulting in a breach of contract by the customer for precluding the vendor from fulfilling the object of the contract, i.e, the rendition of contractually-agreed services.

Good faith immigration compliance and voluntary internal audits? DOJ and DHS component agencies encourage employers to voluntarily conduct internal immigration-compliance audits, and prescribe procedures to (a) correct I-9 paperwork errors, and (b) reasonably investigate circumstances suggesting that an employee may lack employment authorization. Such audits sometimes require the cooperation of current employees, as, for example, if corrections must be made to the employee portion of the I-9, Section 1, or if the employer suspects that the documents of identity and employment eligibility that the employee previously presented may not be genuine.

Given that AB 450 prohibits reverifying a current employee’s eligibility to work in the United States, should California employers defensively adopt “head in the sand” policies to preclude or discourage voluntary immigration compliance audits? The answer will depend on the employer’s business circumstances and employment practices in the particular industry. It may also turn on whether an employer has become aware of facts or credible assertions that call into question the employment eligibility of one or more employees.

Under the constructive-knowledge rule, an employer will be deemed to know whatever could have been discovered if a reasonable investigation had been conducted. Thus, if an employer declines to investigate suspicious circumstances suggesting unauthorized employment, ICE can maintain that an employer has violated federal law because company officials should have known that the business had hired or continued to employ a worker while aware that the individual had no right to be employed in the United States. Consequently, as SHRM feared, AB 450 will “force human resource professionals to decide between abiding by federal law or state law.”

Unintended harm to workers, their unions, and business operations? While the constructive-knowledge rule, in effect, requires an employer to conduct a reasonable investigation, the rule does not dictate the speed of the investigation. In past ICE investigations, some field offices have expressly allowed an employer time to respond to an NSD by phasing-in the duration of time when workers whose employment eligibility has been questioned must reverify their employment eligibility. A compliance phase-in would give the employer time to reverify its challenged employees in tranches. Without internally posting a notice to employees that ICE has begun in I-9 investigation, an employer granted phase-in permission by ICE would (a) privately and without fanfare reverify the employment eligibility of its most recently hired or least skilled workers, (b) speedily hire replacements (who would quickly be trained by employees with longer tenure or greater expertise in the operations of the business), and (c) then reverify the most senior or essential workers.

In this way, employers could conduct a constructive-knowledge investigation sequentially over time, business operations could continue with less disruption, the most valued employees could continue in employment for the time being, and unions would continue to receive dues payments, while retaining the ability to negotiate severance packages for terminated employees.

What, then, is the likely outcome of AB 450’s requirement that the employer give public notice within 72 hours to all employees and the local union that ICE has served a NOI? Today, many employers have found that when employees learn of an ICE worksite investigation, they quickly disappear for fear of arrest and deportation. Leaving the employer in the lurch, an unknown number of undocumented workers merely purchase new identities and forms of work permission on the street – documentation that, with the increasing sophistication of counterfeiters, will appear to be genuine, and thus be used to get a new job with the next employer. And so the cycle continues. Rinse and repeat. Consequently, the 72-hour NOI notice requirement in AB 450 will likely only serve to disrupt businesses and prompt undocumented workers to switch jobs, while shrinking the duration and amount of dues payments to unions.

A bonanza for translators? AB 450 requires employers, within 72 hours of receiving an NOI, to post a notice at the worksite in the language the employer normally uses to communicate employment-related information to employees, announcing that ICE has served an NOI on the employer, and providing other required details. Although not clearly phrased, the posting obligation seems to include the duty to provide a translation of the NOI itself into the language(s) ordinarily used to communicate with employees.

California is a state that prides itself on its diversity, which necessarily entails a noncitizen population speaking a multiplicity of languages. Many workers in the state do not speak English well, but do speak a native language, be it Spanish, Chinese, Tagalog, Vietnamese, Armenian, Khmer, Farsi, or Russian, among others.

Heaven forbid – for example – that ICE serves an NOI on a Friday. This will likely leave many an employer scrambling first to draft the AB 450 notice, and then to find weekend translators capable of quick turnaround to produce the required translations. Perhaps competent translators can be found, but probably only at a premium price for speedy, afterhours delivery.

The drafters of the legislation apparently did not realize, however, that ICE officers are usually quite willing to extend its own 72-hour regulatory deadline by a week or two for an employer to turn over its I-9s and other required records, or even longer, if the employer can provide a reasonable explanation for its inability to satisfy the 72-hour rule.

California lawmakers made no provision for extension of the posting deadline in AB 450. It therefore doesn’t take a Hollywood scriptwriter to visualize how this might play out:

(Scene 1) Mid-day on a Friday afternoon, ICE serves the employer with the NOI,

(Scene 2) As the weekend is about to begin, the employer scrambles to find a lawyer begins who will help word the AB 450 notice,

(Scene 3) At the same time, the employer scrambles to locate translators to prepare translations into multiple relevant languages,

(Scene 4) On Monday afternoon, just hours before the 72-hour deadline in AB 450, the employer posts the translations on the employee bulletin board,

(Scene 5) Later that afternoon, the workers read the posting, interpret it as a “run notice,” and flee the building,

(Scene 6) Minutes later, ICE officers – aware of the California statutory deadline – are already poised in the parking lot to apprehend the fleeing workers and process them for deportation, and

(Scene 7) en Tuesday morning, the factory is idle and quiet, except for the angry voices of union bosses complaining to management about unfair labor practices.

* * *

AB 450 is not the first California encroachment on federal immigration law, and not likely the last. As the courts, federal immigration agencies, and the NLRB are left to sort out federal from state legal rights and duties amid the detritus of this law, California politicians will likely be at it again, concocting new immigration laws, while figuratively quoting a former governor’s thespian line: “[We’ll] be back!”

[Blogger’s Note: Today’s post is by my colleague, Mahsa Aliaskari, Seyfarth Shaw LLP’s Senior Counsel. Mahsa has advised and defended businesses with up to 100,000+ nationwide employees on U.S. immigration compliance programs and practices. She and yours truly — along with former USCIS Director, Leon Rodriguez, noted worksite enforcement lawyer, Dawn Lurie, and Alexander Madrak, who recently joined Seyfarth from the Immigrant and Employee Rights Section in the Civil Rights Division of the U.S. Department of Justice — are part of Seyfarth’s Immigration Compliance Specialty Team, within the firm’s Immigration Group. Mahsa’s basic message is that, given the Administration’s focus on immigration worksite-enforcement, employers — no matter how vigilant corporate leaders perceive their immigration compliance measures to be — must take nothing for granted. Stop assuming and check things out.]

Targeted ICE Investigations ~ in it for the Long Haul with Record $95 Million Plea Deal for I-9 Violations

Following a six year investigation, the U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) unit issued a statement confirming a guilty plea on September 28, 2017 by Asplundh Tree Experts, Co. (Asplundh) for unlawfully employing undocumented workers. As part of the plea agreement, Asplundh received a sentence to pay a forfeiture money judgment in the amount of $80 million dollars, abide by an ICE HSI Administrative Compliance Agreement, and pay an additional $15 million dollars to satisfy civil claims arising out of their failure to comply with immigration law. Prior to this, the often touted “record settlement” included IFCO Systems North America Inc.’s (IFCO) $20.7 million dollars from 2006.

While the facts of this case reveal the company to be an egregious violator, there are parts of this story that may ring true for many companies. The story of Asplundh, similar to the stories of IFCO, Abercrombie and Fitch, Chipotle and many others, should serve as both an informative and cautionary tale. While each of these companies faced different challenges and immigration violations, the lessons in each should help general counsel and the C-suite at companies appreciate the importance of taking stock of their own practices and putting into motion an action plan designed to mitigate risks and liabilities where possible. If nothing else, a judgment of $95 million solidifies that the Form I-9 is not really “just” a simple a form and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).

We also cannot bury our proverbial heads in the sand and ignore recent Executive Orders changing ICE’s immigration priorities-, and promoting “Buy American, Hire American” policies. While we have not yet seen the worksite raids we experienced under the Bush Administration or widespread “desk audits” or “silent raids” of Forms I-9 under the Obama administration, ICE is here for the long haul and future worksite investigations, on-site visits and Form I-9 audits can be expected. This will be especially true as we see an increase in resources allocated to meet the current administration’s priorities in this arena.

The Story Behind Asplundh

Described as one of the largest privately-held companies in the United States, and headquartered in Willow Grove, Pennsylvania, Asplundh is now also known as the company that pled to the largest civil settlement agreement ever levied on an immigration case – how did they get here?

ICE’s six – year investigation found that Asplundh employed a scheme where employees were hired and re-hired even when lower level managers were aware of the fact that the employees were not authorized to work in the United States. But more importantly, the charges noted that “the highest levels of Asplundh management remained willfully blind.” Even before the September 28th announcement of the settlement agreement following the guilty plea, the Department of Justice (DOJ) U.S. Attorney’s Office announced on September 19, 2017 that three employees, including supervisors and a Vice- President, had already entered guilty pleas to felony counts of conspiracy to commit fraud and misuse visas in connection with this case, with each defendant facing prison time and fines.

ICE Acting Director Thomas Homan stated in its September 28th announcement that “[t]oday’s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet” (emphasis added).

The charge was for one count of unlawfully employing aliens. Statements from ICE and the (DOJ) U.S. Attorney’s Office describe a company practice where a decentralized hiring practice reinforced and supported the acceptance of fraudulent documentation presented to company representatives by new hires and re-hires in regions across the United States. More specifically, as noted in ICE’s statement, the six year investigation revealed that from 2010 to 2014, “the company decentralized its hiring so Sponsors (the highest levels of management) could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers, including unauthorized aliens, in the field. Hiring was by word of mouth referrals rather than through any systematic application process. This manner of hiring enabled Supervisors and General Foremen to hire a work force that was readily available and at their disposal.” The purported motivation for this national industry leader in tree trimming and brush clearance for power and gas lines – a motivated workforce willing and able to relocate at a national level as needed to respond to weather related events requiring Asplundh crews.

While details of the Administrative Compliance Agreement have not yet been released, given the charges and facts disclosed it is likely the company will be required to take action on a number of fronts. As noted in the company’s own statement, Asplundh has already taken some corrective action, including:

Revising hiring procedures to verify each identification examination for every new hire.

Investigating every complaint of potentially undocumented workers.

Retaining a third party consultant to review actions and procedures.

Presenting the company compliance program to ICE for review.

These corrective actions are reminiscent of what we saw with IFCO and changes that IFCO made in 2006 as part of its agreement with ICE. Recent history has shown us ICE’s unwavering commitment to its investigations and enforcement of immigration laws regardless of the name or party controlling the Oval Office.

What Does This Mean for Your Operations?

The key for all employers is to take all necessary and possible steps that will protect the company from a charge and a subsequent finding of knowingly or intentionally hiring undocumented workers. While all employers may not be able to guarantee full compliance, everyone can and should take steps that will provide an affirmative defense against charges and allegations of willfully employing undocumented workers or simply being careless to the point that a good faith defense cannot be made. From addressing proper form completion, document retention, remote hires, electronic I-9 vendors and detecting fraudulent documents, there are steps every company can and should take with minimal disruption to operations that can provide an affirmative defense in showing good-faith compliance with Form I-9 IRCA requirements.

Compliance with Form I-9 requirements should be a priority – not an option – for any U.S. employer. All employers, regardless of industry or size, must make a concerted effort to understand the importance of compliance, and make strategic business decisions to limit liability. Investing the time and resources necessary to develop and implement proper immigration compliance policies and protocols should be on the agenda. Businesses can begin taking a proactive approach and action on the following fronts:

Preventative Audits – Guided internal audits of I-9 documents, processes and procedures. Do this sooner rather than later and with guidance from experienced immigration compliance counsel. Whether you choose to conduct the audit yourself or retain counsel, the results of the audit will go a long way toward assessing exposure and limiting liability either in a “desk audit” or a full on investigation. Remember, if the company has been audited once, you are on the government’s radar with secondary inspections and active investigations a possibility.

Train, Train, Train – Human Resource teams and their delegates need to consistently and accurately complete Form I-9s. Provide them with basic knowledge of the process and the tools to recognize fraudulent identity and work eligibility documents. To become and remain compliant with IRCA and other state and federal immigration regulations training and investment in the people responsible for this function is critical.

Improve or develop policies and procedures – Often we see issues relating to immigration compliance handled ad hoc, with larger entities taking a more “decentralized” approach. Time and again we see that leaving immigration compliance at the lowest rung of priorities increases risks and liabilities. When the process is identifiable, then accountability can be, too.

Manage compliance – Policies and procedures do not mean anything without proper implementation and monitoring. Lack of compliance where immigration and IRCA mandates are concerned carries fines and penalties that includes prison terms for individuals. For the company it can also mean a PR nightmare. Dedicating top management level resources to oversee a company’s immigration compliance program should be a top consideration.

Prepare for possible workplace disruptions – Whether the current Administration steps up enforcement actions is not really the motivating factor. As depicted in the excerpt below from the Department of Homeland Security – U.S. ICE Worksite Enforcement FY 2014 annual report, we have continually seen ICE conduct long, exhaustive investigations, with an increase in audits and related fines and penalties. The following table reflects the number of opened and closed worksite enforcement investigations, criminal and administrative employee and employer arrests and the assessed fines and collections for each fiscal year from the annual report.

For more than sixteen years, since the infamous worksite raids under the Bush administration, we have watched enforcement actions increase regardless of the party controlling the executive branch. Whether a paticular form of enforcement action becomes more prevalent or not, should your company be investigated, severe losses could occur and planning for potential impacts on workforce availability in advance can prove to be critical to limiting disruption to ongoing operations.

As ICE investigations continue and potentially expand under Presidential Executive Orders or future Presidential Proclamations, it is more important than ever for employers to protect themselves by ensuring that proper immigration compliance policies are in place and in-house audits are conducted on a regular basis to detect potential issues and irregularities. As demonstrated in Asplundh, the stakes are high, employer responsibilities as well as liabilities under Title I, Part A of the Immigration Reform and Control Act of 1986 (IRCA) should be taken very seriously.

Deciphering the workings of the bureaucratic mind is never easy. What seems settled practice is often anything but. Abrupt abandonment of longstanding policy can happen in a nanosecond — many times with nary a word of forewarning or explanation. Usually there’s an unstated backstory — one that can be divined by asking the forensic question first popularized by the Romans: Cui bono? (Who benefits?) Yet once in a while there is simply no logical explanation.

A recent example of illogic at its most stark comes from an unexplained about-face in policy just adopted by the nation’s agency that grants or denies immigration benefits — U.S. Citizenship and Immigration Services (USCIS), a component within the Department of Homeland Security (DHS). This “turnabout is unfair play” change involves “advance parole,” the privilege to enter the U.S. without a visa that USCIS and its predecessor, the old Immigration and Naturalization Service, have collectively made available for decades.

This USCIS policy change will unnecessarily impede the flow of U.S.-based global travel to and from the United States. Without strengthening the integrity of the immigration system, or enhancing President Trump’s admonition to “Hire American,” the change will gum up the workings of the national and global economy, and needlessly disrupt the lives of individuals and families here and abroad.

A few words of explanation: Advance parole is a special form of permission to return to the U.S. without a visa stamp in one’s passport. As the name applies, USCIS grants it to a foreign national before s/he leaves the country. It is a generally reliable reassurance that the advance parolee will be allowed to reenter upon return from foreign travel. It is also essential to most persons applying for a green card, because a different USCIS rule treats applications for adjustment as having been abandoned if the applicant travels abroad without having first received advance parole. In the exercise of agency discretion, USCIS grants parole in finite increments for legitimate business or personal reasons requiring travel abroad.

Until a few weeks ago, USCIS’s standard practice has been to allow noncitizens — largely green card applicants — already granted a period of advance parole to apply for, and receive renewal for another term before the current grant expires. For years, USCIS allowed this beneficial practice to persist, presumably so that frequent international travelers would have no advance-parole gap, and thus, no impediment to travel abroad and reentry.

But now, USCIS apparently has just remembered that an instruction to the advance parole application (Form I-131) states: “If you depart from the United States before the Advance Parole Document is issued, your application for an Advance Parole Document will be considered abandoned.” In plain English, this means that if you are a noncitizen who (1) has an unexpired advance parole document, (2) applies for renewal, and (3) travels abroad with the intention of returning before the initial grant expires, then the act of departure NULLIFIES your renewal application because USCIS considers that you’ve abandoned it.

This would be little more than an annoyance involving the burden of reapplication if USCIS adjudicated advance parole applications quickly. To every applicant’s dismay, however, USCIS — according to its own published processing times reports — takes between SIX TO NINE MONTHS to decide whether or not to grant advance parole.

The upshot of this USCIS policy reversal is that it creates a de facto foreign travel ban. It means that most green card applicants cannot leave the U.S. on short notice no matter if grandma is dying or a business emergency requires immediate foreign travel. It also means that if they do leave the country without advance parole travel authorization or re-authorization, not only will they have to reapply for a green card (assuming they have a visa for reentry), they might not even be able to get back in at all. Some might be required to apply for and receive a nonimmigrant or immigrant visa from a U.S. consulate abroad; others who had been unlawfully present in the United States before their departure might have to wait three or ten years before becoming eligible to receive a visa and return to the United States.

Furthermore, for the two categories of nonimmigrants who can travel abroad and reenter without advance parole — H-1B (Specialty Occupation workers and their H-4 dependents) and L-1 (Intracompany Transferees and their L-2 family members) — they may well need to apply for renewals of their visas at a consular post abroad, but only after USCIS has approved their employers’ requests to extend the visa-petition validity period.

So what’s this all about USCIS? Asking the “who benefits” questions, we wonder: Is it you? Does your agency reap a windfall in additional filing fees from abandoned and renewal applications for advance parole travel authorization? The answer is “no.” Ever since July 30, 2007, renewal applications for advance parole on Form I-131 require no filing fee.

In other words, USCIS will be required to renew advance parole applications for free, and deal with a slew of expedited-adjudication requests for advance parole renewals, also for zero dollars. Perhaps USCIS adjudicators look with envy at immigration officers in other DHS components who view themselves as unshackled by executive orders to clamp down hard on illegal immigration. So, folks at USCIS headquarters: Is this a dog whistle? Have you concluded, perhaps for the sake of your own and your teammates’ job security, that you must be seen as strictly enforcing the eligibility requirements for legal immigration benefits, even if all stakeholders and your agency suffer?

If that’s the case, you’ve gone too far. Your forebears at INS and your former selves in prior administrations realized that when a “rule” makes no sense, hurts immigration stakeholders for no good reason, and puts more uncompensated work on your desks, the appropriate course is to see if another, less damaging interpretation might be permissible. A more relaxed view of the so-called rule is especially warranted if the requirement merely originates in an instruction to a form.

To be sure, 8 CFR § 103.2(a)(1) provides that USCIS form “instructions are incorporated into the regulations requiring its submission.” But a warning or advisal in this context that USCIS would consider departure from the United States as an abandonment of an advance parole application cannot fairly be considered an instructionthat explains how to complete and file a form to request permission to reenter the United States. Moreover, if your agency has already granted permission to travel abroad and return on a document that is unexpired, why would you infer that an advance parole renewal application has been abandoned? Have you already forgotten that a 2012 Board of Immigration Appeals precedent decision binding upon your agency — under a common sense reading of the immigration laws — expressly rejected your interpretation that travel outside United States with an unexpired advance parole document authorizing one’s readmission is not to be treated as an abandonment of the pending application.

So again I ask you, the leaders of USCIS, who benefits from this senseless policy reversal?

The pattern by now is all too familiar. With the Trump Administration fully ensconced, the rollback of President Obama’s eight-year legacy continues. This time it involves the International Entrepreneur Regulation — an imperfect and burdensome rule that would have become effective last month had the Administration not imposed a delay. The Obama-era rule created a labyrinthine human steeplechase allowing a few foreign entrepreneurs, in league with U.S. venture capitalists, to secure an immigration benefit through “parole” by together investing $250,000.Parole is a statutory immigration benefit that allows lucky parolees to enter the U.S. without a visa. If U.S. Customs and Border Protection (CBP) or U.S. Citizenship and Immigration Services (USCIS) grants parole, one or the other agency must determine on a case-by-case basis that urgent humanitarian reasons or a significant public benefit warrant the grant of this extraordinary, discretionary privilege.

I respectfully submit this comment in my individual capacity as an interested immigration stakeholder in response to the notice of the Department of Homeland Security (DHS), “International Entrepreneur Rule: Delay of Effective Date,” published in the Federal Register at 82 Fed. Reg. 31887 (July 11, 2017).

I am an attorney admitted to practice law and in good standing in the States of Michigan (1976), California (1981), and New York (2005).

While I concur in these incorporated comments which suggest numerous improvements to the extant version of the final International Entrepreneur regulation (the Final Regulation), I write separately in the event that DHS and U.S. Citizenship and Immigration Services (USCIS) determine, despite the comments, that they will nonetheless proceed with their stated intention to revoke the Final Regulation.

The Trump Administration is understandably concerned about blanket parole authorizations and apparently believes emphatically that statutory parole authority should be exercised on a case-by-case basis. With respect, I maintain that the USCIS’s Final Regulation and its Supplementary Information convincingly demonstrate that the requirement that case-by-case parole adjudications would in fact be accorded to International Entrepreneurs who apply for parole.

Should the Administration nevertheless proceed, however, to revoke the International Entrepreneur Final Regulation I urge that the revocation be simultaneously replaced by the issuance of an Executive Order or the adoption of binding policy to be incorporated into the USCIS Policy Manual that would more generously incentivize foreign and domestic entrepreneurs and their joint-venture partners who in good faith endeavor to create desirable jobs for American workers.

Thus, I offer the following suggestions for inclusion in an Executive Order or a new chapter on international entrepreneurs in the USCIS Policy Manual, and ultimately, in a proposed and final regulation following public notice and an opportunity to comment.

Parole authority under the Final Regulation – because of the inherent limitations and restrictions of parole admission – is at best a less than optimal way to attract and enable entrepreneurs to innovate in the United States. Parole offers no direct path to a work visa or permanent resident status, and a grant of parole is an unreviewable discretionary decision offering finite benefits. Parole is not a nonimmigrant status within the existing authority of the Immigration and Nationality Act for employment-based foreign citizens seeking to come to the United States. A better and likely more successful regulation encouraging foreign entrepreneurs and innovators to cast their lots with the United States should be based upon existing authority under the Immigration and Nationality Act (INA) for the importation of employment-based workers.

Existing authority under the INA’s employment-based nonimmigrant and permanent resident visa categories already endows the Trump Administration with power to immediately publish an Executive Order or amend the USCIS Policy Manual, and in due course to publish proposed and final rules which would define specific examples and circumstances under which qualified and worthy entrepreneurs would be authorized to enter and work in the United States on a temporary or permanent basis. Included among these provisions are the O-1 visa for extraordinary ability individuals, and the employment-based immigrant visa categories for extraordinary ability individuals (EB-1-1), outstanding professors or researchers (EB-1-2), individuals of exceptional ability or advanced degree holders based on a national interest waiver (EB-2), and an expansively interpreted restatement of the Department of Labor’s Schedule A, Group II labor certification exemption (also EB-2).

Were the Trump Administration to take the actions suggested above under existing INA authority, it should do so by adopting more reasonable requirements that better reflect business reality and legitimate practices in the startup sector than those contained in the Obama Administration’s Final Regulation. Such an effort would be far more likely to create well-paying jobs for US workers in new industries, and offer world-class innovations in American goods and services. Such a rule would also advance President Trump’s objective to Make America Great Again, would more likely enhance entrepreneurial innovation in the United States, and would better compete for the scarce supply of entrepreneurs and innovators against alternative national immigration schemes such as those offered by Canada and other countries that compete for the same scarce global pool of talented entrepreneurs.

* * *

For these reasons, I respectfully ask USCIS and DHS that they not throw out the entrepreneurial baby, even if they must toss the parole bathwater. Thank you for considering my comment.

Memes, apocrypha, obfuscation, head feints, hand-wringing, and supposition: These are the misleading and unreliable stuff of the Interweb. To a great extent, alas, they also infect the EB-5 ecospace. This article will avoid conjecture and look at the few hard facts we know about Trump Administration appointees and the positions they will hold, while encouraging EB-5 stakeholders momentarily to suspend their hopes and fears.

Facts: Trump Administration appointees and nominees have previously worked closely with Messrs. Sessions and Grassley, or with the Federation for American Immigration Reform (FAIR), a nonprofit widely regarded as an anti-immigrant advocacy group. The decisionmakers include:

Sessions alumni

Stephen Miller, now Senior Advisor to the President for Policy.

Gene Hamilton, now Deputy Chief of Staff at the Department of Homeland Security (DHS) for Policy and Senior Counselor.

Grassley alumni

Lee Francis Cissna, nominee for Director of U.S. Citizenship and Immigration Services (USCIS).

Kathy Nuebel Kovarik, now Chief of the USCIS Office of Policy and Strategy.

FAIR alumni

Julie Kirchner, now USCIS Ombudsman.

Aside from Stephen Miller, reportedly an author or coauthor of Versions 1.0 and 2.0 of the controversial Executive Order described by the President as the “travel ban,” not much is known publicly about the intended policy positions of these individuals, except for Mr. Cissna[1] and Ms. Kirchner, [2] both lawyers of strong pedigree.

Mr. Cissna has been most recently “detailed” to Sen. Grassley where he helped write S.2266,[3] the H-1B and L-1 Visa Reform Act of 2015 — a bill that would have dramatically enlarged the enforcement authority of the U.S. Department of Labor and restricted H-1B and L-1 visa requirements and benefits, as well as S.1501,[4] the American Job Creation and Investment Promotion Reform Act of 2015 — introduced by and Sen. Grassley and Sen. Leahy — which included an array of what have come to be known as EB-5 “integrity” measures.

Before and after his stint with Sen. Grassley, Mr. Cissna spent years as a lawyer at DHS immersed behind the scenes in immigration policy. His testimony before the Senate Judiciary Committee and his written answers to questions from three Senators tell us how he intends to deal with the EB-5 program if approved as USCIS Director:

He will finalize the two prior rulemaking efforts of USCIS during the Obama Administration (an advance notice of proposed rulemaking and a proposed rule) into final effect “according to the process set forth in the Administrative Procedure Act and related DHS and OMB [Office of Management and Budget] guidance.”[5]

He is “committed to enforcing USCIS policies ensuring the integrity of all USCIS adjudications, no matter who the applicant or petitioner is, as well as policy deliberations, including their independence from any inappropriate external influences.”[6]

He has observed that the “USCIS Ombudsman and the USCIS director should maintain an independent, yet respectful and cooperative relationship, as both share the goal of improving USCIS” and acknowledged the “USCIS Director’s statutory obligation to ‘meet regularly with the Ombudsman . . . to correct serious service problems identified by the Ombudsman . . .’”[7]

He confirmed his intention to “strive to ensure that the agency carries out its mission in a fair, lawful, efficient, and expeditious manner.”[8]

Before becoming the Ombudsman, Ms. Kirchner apparently did not make any public statements revealing her personal views on the EB-5 program.[9] During her tenure as Executive Director of FAIR, however, the organization actively opposed EB-5 program.[10]

In accepting her position and taking her oath of office, Ms. Kirchner is no doubt aware of Section 452 of the Homeland Security Act, the statutory mandate prescribing the authority and duties of the Ombudsman, which provides:

Section 452 of the Homeland Security Act (HSA) provides:

(a) IN GENERAL – Within the Department, there shall be a position of Citizenship and Immigration Services Ombudsman (in this section referred to as the ‘Ombudsman’). The Ombudsman shall report directly to the Deputy Secretary. The Ombudsman shall have a background in customer service as well as immigration law.

(b) FUNCTIONS – It shall be the function of the Ombudsman—

1) To assist individuals and employers in resolving problems with [U.S.] Citizenship and Immigration Services;

2) To identify areas in which individuals and employers have problems in dealing with [U.S.] Citizenship and Immigration Services; and

3) To the extent possible, to propose changes in the administrative practices of [U.S.] Citizenship and Immigration Services to mitigate problems identified under paragraph (2).

In addition, Section 452(c)(F) of the HSA requires the Ombudsman to report annually to Congress and recommend “such administrative action as may be appropriate to resolve problems encountered by individuals and employers, including problems created by excessive backlogs in the adjudication and processing of immigration benefit petitions and applications[.]”[11]

The responsibilities of the Ombudsman are particularly significant given that in August 2015 USCIS published a set of EB-5 “Protocols,” which limited the direct intervention of USCIS leadership in specific EB-5 cases, but exempted the USCIS Ombudsman from its prohibitions.[12] Since direct outreach to USCIS senior leadership in specific cases is now greatly restricted, the statutory role of the USCIS Ombudsman in assisting “individuals and employers in resolving problems with” USCIS becomes essentially the only way that EB-5 stakeholders can raise quality assurance problems in specific cases. To be sure, the USCIS Office of Public Engagement (OPE) conducts regular EB-5 stakeholder engagements and listening sessions. These OPE opportunities, however, are often structured to preclude posing questions or concerns about specific cases.

Ms. Kirchner, the fifth individual to hold the title of Ombudsman, will likely review and adapt for herself the varying approaches of her predecessors. At least one Ombudsman took a more aggressive approach, which understandably produced resistance at USCIS. Others in varying degrees have been more or less assertive, innovative, affable and collaborative in finding ways to communicate directly with USCIS Service Center adjudicators and help resolve individual and employer problems.

So, how much power does an Ombudsman have in interacting with USCIS? As a matter of historic practice, prior incumbents often achieved a measure of success by acting as disinterested intermediaries, but did not offer or make public the Office’s own interpretations of the Immigration and Nationality Act (INA), deferring instead to USCIS. As a coequal component of DHS with USCIS, however, the Ombudsman is authorized by its mandate in HSA § 452(b)(2) and (b)(3) to “identify” problematic areas in the public’s “dealing with [USCIS]” and to “propose changes in the administrative practices” of USCIS.

Clearly, therefore, the Ombudsman’s duties of identifying problems and proposing changes to USCIS’s administrative practices are sufficiently broad to include problems and practices stemming from misinterpretations of the INA and agency regulations. A recent instance in which a legal interpretation by the Ombudsman would have been appropriate and welcome is on long-unresolved issues of the period during which EB-5 conditional resident’s funds must be redeployed and whether the redeployment must be in “at-risk” assets once the investment project has concluded but before conditions on residency have been removed.[13]

Knowledgeable immigration lawyers recognize that the role of the Secretary of Homeland Security, and the Department’s component agency, USCIS, is to “administer” and “enforce” the INA and all other immigration laws, whereas the Attorney General possesses exclusive authority within the Executive Branch to determine and rule on all questions of law.[14]

Since the Ombudsman’s role is to identify problematic areas in the public’s dealings with USCIS and to propose changes in its administrative practices, the Ombudsman undoubtedly holds coequal authority with USCIS to challenge the latter’s legally unsupportable and troublesome administrative interpretations of the law and regulations underpinning the EB-5 program, subject only to the Attorney General’s power to conclusively determine questions of law that are binding within the Executive Branch.

Recently, Ms. Kirchner provided welcome insights on the EB-5 program. In the Ombudsman’s 2017 Report to Congress, she acknowledged the adverse consequences caused by the lack of robust anti-fraud and national- security protections, and by the failure of the House and Senate to agree on a permanent or multi-year reauthorization of the Regional Center program. Concerning the unfortunate pattern of successive short-term EB-5 Regional-Center reauthorizations, Ms. Kirchner observed:

Legislative efforts to reform the EB-5 program have stalled over numerous issues, including the methodology for determining TEAs, the two-tiered investment framework,and effective dates for any new provisions. In the meantime, Congress has reauthorized the Regional Center program in a series of short-term extensions. These short-term extensions trigger filing surges by investors seeking to secure a place in the queue before the minimum investment amount is increased or changes are made to other provisions. They also contributed to delays in updating EB-5 regulations as the agency yielded to signals from Congress that it intended to make statutory changes to the program.[15]

In addition, Ms. Kirchner observed in her 2017 Report that extremely long backlogs in EB-5 adjudications at USCIS continue to plague the program, and, with regard to the predominant segment of all EB-5 investors, namely, individuals born in mainland China, that the lack of annual EB-5 immigrant visa numbers “will likely [require them to] wait 10 years or longer for their EB-5 immigrant visas due to oversubscription, absent an increase in or recalculation of the annual quota.”[16]

One troubling observation in the 2017 Report hinted that the Office of the Ombudsman may not offer its own independent statutory and regulatory analysis in situations where USCIS’s policy guidance appears to deviate from the INA and agency regulations, even though the views of USCIS cause problems for individuals and businesses:

In November 2016, USCIS released an addition to its Policy Manual titled “Investors.” This six-chapter policy treatment is a significant achievement, as it synthesized and aligned the agency’s regulations, decisional law, policies, and procedures with enabling statutes. Given the complexity of the EB-5 Program, the creation of this comprehensive and authoritative resource has been well received by EB-5 stakeholders.[17]

This statement no doubt comes as a surprise to many external EB-5 legal experts. The lawyers who submitted an eight-page AILA Comment replete with numerous and wide-ranging suggested corrections to the EB-5 chapters in the USCIS Policy Manual would likely disagree with the characterization that this sub-regulatory guidance can be fairly characterized as a “comprehensive and authoritative resource [that] has been well received by EB-5 stakeholders.” Thus, it remains to be seen just how much future federal litigation (likely brought under the Administrative Procedure Act, the INA, and other statutes) will be spawned raising substantive legal questions on the degree to which the manual is in fact comprehensive or authoritative. Hence, scholars of EB-5 jurisprudence must stay tuned as EB-5 jurisprudence evolves.

* * *

In the final analysis, insufficient hard facts are known to foretell how Mr. Cissna, Ms. Kirchner, and their respective agencies will discharge their responsibilities under the immigration laws. As noted, they are both accomplished lawyers, and during their respective honeymoon periods, EB-5 stakeholders should accord them the respect and confidence, consistent with existing rules of professional responsibility, that the views of their former employers are not necessarily predictive of their future policies.[18]

Time will tell whether and how well Ms. Kirchner and Mr. Cissna engage together in resolving EB-5 stakeholder concerns over backlog reduction, wayward adjudications, kitchen-sink requests for additional evidence, and other frustrations. Until more is known about real-world actions of the Ombudsman and adjudications at USCIS, EB-5 stakeholders and their immigration lawyers must decide for themselves whether resort to Ombudsman intercession will more likely help or hurt regional centers and immigrant investors in specific cases. The calculus in approaching or avoiding the Ombudsman should be based on a variety of factors, such as, the financial strength of the project and its potential or actual job-creation activities; the factually-demonstrable urgency in receiving an adjudication; the presence or absence of red-flag factual or legal issues; and the likelihood that the particular case presents issues that, once resolved, would benefit multiple EB-5 stakeholders, and thereby allow the Ombudsman to husband its scarce resources, and get more bang for its intercessory buck; and other relevant considerations.

This author believes that USCIS (under Mr. Cissna) and the Office of the USCIS Ombudsman (under Ms. Kirchner) will be led in good faith by talented and accomplished lawyers who have taken oaths to support and uphold the Constitution and the immigration laws of the United States, unless either of them, by their conduct, demonstrates otherwise.

For the time being, as a matter of fact, this author will continue to seek the intervention of the Ombudsman in worthy cases, given that (a) Office of the Ombudsman continues to be staffed by experienced lawyers and other career officers who have historically been helpful in employment-based immigration matters, (b) the EB-5 program continues to be a tax-generating engine of economic growth and job creation, and (c) fully law-compliant EB-5 petitions continue to encounter “problems” at USCIS.

As for USCIS itself, the agency’s widely-known endemic problems continue to cry out for resolution. Submission of well-documented cases establishing EB-5 eligibility, participation in public engagement, advocacy at public conferences and through print and social media, and litigation — this author believes — remain the tools of choice.

Footnotes:

[1] Mr. Cissna’s legal career is outlined in his answers to the questionnaire of the Senate Judiciary Committee, accessible here (unless otherwise noted, all links are current as of June 12, 2017).

[5] May 27, 2017 Responses of Lee Francis Cissna to Questions for the Record from Sen. Dianne Feinstein), available here, No. 11 (Responses).

[6] Responses to Sen. Durbin, available here, No. 9. Sen. Durbin expressly asked “How would you ensure that President Trump’s family business interests won’t affect the adjudication of [the EB-5 program] . . . or the consideration of possible reforms to [the program].”

[8] Responses to Sen. Feinstein, No. 2. In the preface to her question Sen. Feinstein stated that “one of the agency’s strategic goals is ‘providing effective customer-oriented immigration benefit and information services’ . . . [and] one of USCIS’s core customer service principles is ‘to approach each case objectively and adjudicate each case in a thorough and fair manner.’”

[9] Based on the remarks made by a representative of the USCIS Ombudsman at the Federal Bar Association Annual Immigration Conference on May 12, 2017, Ms. Kirchner reportedly has indicated to staff that she is interested in the EB-5 investor program, the H-1B visa category and other areas of employment-based immigration law.

[10] Ms. Kirchner is listed, for example, as a lobbyist in 2012 concerning S.3245 sponsored by Sen. Leahy, a bill to “permanently reauthorize the EB-5 Regional Center Program, the E-Verify Program, the Special Immigrant Nonminister Religious Worker Program, and the Conrad State 30 J-1 Visa Waiver Program,” regarding provisions “relating to more controversial issues in three of the four programs because of significant deficiencies in oversight and fraud.” See Form LD-2 for Third Quarter 2012, available here. Also, in 2012, while Ms. Kirchner served as FAIR’s Executive Director, the organization published “Selling America Short: The Failure of the EB-5 Visa Program,” available here.

[11] As discussed in the text below, on June 29, 2017 Ms. Kirchner, in her formal capacity as Ombudsman, submitted to Congress her Office’s 2017 Annual Report (“2017 Report”). The report, discussed later in the text, is available here (last accessed on July 12, 2017).

[13] The USCIS’s continuing at-risk “sustainment” requirement for redeployed funds, lasting until conditions on residency have been removed, is an issue that begs for interpretation by the USCIS Ombudsman. See June 14, 2017 USCIS Policy Alert, “Job Creation and Capital At Risk Requirements for Adjudication of Form I-526 and Form I-829,” (accessible here) and amendments to the USCIS Policy Manual at Volume 6: Immigrants, Part G, Investors [6 USCIS-PM G] (accessible here). See also, “USCIS Finalizes EB-5 Sustainment and Redeployment of Capital Issues and Consequences of Regional Center Termination,” by Robert C. Divine in the current issue. For arguments opposing the USCIS redeployment and sustainment interpretations, see American Immigration Lawyers Association Comments on the USCIS Policy Manual Regarding Eligibility Requirements for Regional Centers and Immigrant Investors. Volume 6: Immigrants, Part G, Investors (December 14, 2016; AILA Doc. No. 16121565 Posted 12/15/16 [“AILA Comment”]), at pp 6-7 (noting that the at-risk requirement is a creature of the regulations and not the INA, and that as a matter of law the EB-5 investment need merely be “… sustained over the two years of the petitioner’s conditional permanent residence in the United States”).

[18] Rules of legal ethics generally hold that “a lawyer’s representation of a client . . . does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” See American Bar Association Model Rules of Professional Conduct Rule 1.2(b)(“Scope Of Representation And Allocation Of Authority Between Client And Lawyer”), accessible here. The author understands that Ms. Kirchner apparently did not serve as an attorney of FAIR, but as its Executive Director. In this author’s view, however, merely because an individual on behalf of a prior employer has opposed immigration relief for unauthorized immigrants (see, e.g., Ms. Kirchner’s November 8, 2007 testimony before Congress to that effect, accessible here) does not require or necessarily justify the conclusion that she would ipso facto take steps to maintain America’s legal immigration system in its clearly dysfunctional state.

The talk of the nation – at least that segment interested in U.S. green card benefits available to foreign investors – is about the welcome or feared changes likely to occur in the EB-5 employment-creation immigration investor visa program. Scuttlebutt and divination have yielded a wide range of ever more restrictive, complex and burdensome changes that are foreseeable for this year.

This article will add to this mix a few of the author’s soothsayings, derived from attendance at conferences, discussions with knowledgeable insiders, and a review of the plethora of differing bills and drafts emanating from both houses of Congress (or their respective staffers). Reader beware, however; some, none, but not likely all, of the predictions below may happen. Nonetheless, preparedness for the unknown future is probably better than obliviously passing time, doing nothing and learning that the light at the end of the tunnel is an oncoming train.

Continuation of the Regional Center program. Despite the oft-stated gripe that the EB-5 program allows foreign citizens to buy a U.S. passport, and subject to the connivery of malefactors, Congress will enact and President Trump will sign an appropriation bill or continuing resolution to extend the Regional Center program beyond its current sunset date (April 28, 2017). Sometime thereafter, broad reforms of the EB-5 program (predicted below) are likely to become law.

No future for USCIS’s draft rules. USCIS’s January, 2017 proposals for new regulations, which among otherswould have significantly increased the minimum amount of investment, will never be promulgated in final form without substantial revisions.

Extended longevity for the Regional Center program. Rather than the fits-and-starts renewals of the past few years, Regional Center investments will be given at least a five-year lease on life.

Cough up more dough. EB-5 investors will no longer qualify with at least a $500,000 investment. Expect that investments minimums will increase to at least $800,000 or a $1.2 million.

Enhanced transparency and more timely reports of material changes. Expect Congress to insist that Regional Centers, New Commercial Enterprises, Job Creating Entities, related parties, and EB-5 investors must disclose far more detailed data and documents than heretofore required. How USCIS will manage the filings and place them online (as Congress will likely require) remain to be seen.

Submission and approval of exemplar business plans before I-526 petitions can be filed. As a practical matter, it makes sense to require that project-related documents and Regional Center designation or amendment requests be given a deferential green light before USCIS adjudicates individual investor petitions; but this exacerbates the immigrant visa quota backlog.

Due diligence will become more than merely de rigueur. Individual non-investor participants will be required routinely to certify that — after internal and external due diligence reviews – entity-related filings fully comply with state and federal securities laws and all other applicable laws and rules. Anticipate also that regional centers and all other project participants (including their lawyers, agents or individuals in active concert with them) must describe policies and procedures that ensure law compliance.

Audits and site visits will proliferate. Entity stakeholders should expect that their activities and records will face onsite or remote scrutiny for law and program compliance at least once every three years.

No hidden payments. Expect that never again will the previously prevalent practice of burying or hiding fees paid to third parties, including migration agents, be countenanced.

Well capitalized players only. Congress will assuredly gouge out ever-higher filing fees, including mandatory deposits into an enforcement-oriented integrity fund and more exorbitant petition filing fees). It will also provide for substantial monetary fines for EB-5 program violations and other legal transgressions – which may be paid only from non-EB-5 money. The heyday of thinly capitalized Regional Centers is over.

No foreign governments or nationals allowed. Foreign governments, sovereign funds or state-owned enterprises will be allowed, directly or indirectly, to provide capital or be involved with a Regional Center, a New Commercial Enterprise, or a Job Creating Entity. Only U.S. citizens or lawful permanent residents will be permitted to own these entities.

The U.S. securities laws will apply extraterritorially. Congress will at last put to rest the feeble claims that EB-5 investments are not securities or that securities jurisdiction ends at the U.S. border. It will also extend the SEC’s lasso to foreign migration agents and promoters.

With expensive provisos, good-faith but swindled investors can keep their priority dates. Priority-date preservation must occur within a short window of time but only if cheated investors ante up another capital contribution of at least the minimum required investment. Money will talk but those with no more investment money will walk (or otherwise leave the U.S.), notwithstanding that hoodwinked investors put up their life savings to immigration under the EB-5 visa category.

Set-aside TEA preferences will be established. Minimum investment amounts and more generous visa-number allotments (with rollover of unused visas) will go to EB-5 investors contributing capital to projects in rural or high-poverty urban areas, or to infrastructure or manufacturing projects. (The name of this movie is The Return of the Pork-Barrel Earmarks.)

Fund administrators will proliferate. Ronald Reagan’s “trust but verify” methodology will come to the EB-5 program. Private plan and yacht builders beware: Money will not move unless independent administrators certify that EB-5 funds will go solely to their lawfully required destinations. Fund administrators will also be required and authorized to review all deal docs of the NCEs and JCEs and to provide timely reports to USCIS, the SEC, and EB-5 investors of any untoward or otherwise materially different activities than outlined in signed documents or governmental filings.

New regulations, studies and reports will regularly be published. Inspectors-general and GAO reports on every nook, cranny and aspect of the EB-5 program will be publicly released. In addition, the Commerce Department will issue regulations outlining job creation methodologies and USCIS alone will determine eligibility for TEA classification.

Some good news. Minors will receive limited age-out protection; concurrent submission of I-526 petitions and I-485 adjustment of status applications will be allowed as now occurs in other employment-based immigrant visa categories; USCIS must reduce processing times; and investors who have waited two years after filing I-526 petitions that are ultimately approved, and who then are either admitted as immigrants or adjusted to lawful permanent resident status will go straight to green card status without conditions.

* * *

As scriptures report, prophets often bring unwelcome news. As the last election proved, prognosticators – no matter that their conjectures may be based on metrics or gut instincts – can be wrong. Whether or not these predictions manifest someday, please be nice to me. Keep in mind the words of Yusuf Islam (Steven Demetre Georgiou, but commonly known by the stage name Cat Stevens), in his unforgettable song, quoted here, clearly out of context:

As the Obama presidency nears its twilight, let me tell you about our leader’s eight-year, largely-disappointing record on immigration.

But first a bias alert: I voted for the President twice; I like and respect him; and I marvel at how glib, cool, incisive, studious, and otherwise mostly big-hearted he’s been. With favorability ratings nearing 60 percent, he’s seen by most Americans and citizens of other countries as consistently suave, temperate, well-spoken, thoughtful, and unflappable.

What’s more, he’s been right on most domestic and foreign policy choices, including health care, the resuscitation of the U.S. auto industry, deficit reduction, global climate change, positive engagement with Iran, and a breakthrough in U.S.-Cuba relations.

His has been a corruption-free presidency that only a handful of predecessors have rivaled. His signature achievement, available health care for almost all Americans, though imperfect and needing tweaks, stands as a Mt. Everest that no president heretofore had scaled.

The inheritor of an economy on life support suffering sky-high unemployment, a peerless dad and husband, a role model for aspiring Horatio Algers and stand-up comedians everywhere, and a surprisingly talented singer and dancer, President Obama has turned the country around on virtually every metric (other than immigration). He’s done this despite unceasing opposition and insults from all stripes of Republicans and a bloviating right-wing media that spewed hatred and false memes, while sowing unwarranted doubts about his citizenship, his faith, and his very legitimacy.

Despite the few modest immigration improvements he can rightly claim, future historians will likely rue his most despicable actions – his uncharacteristic heartlessness and intransigence on strict immigration enforcement against asylum-seeking moms and kids, and his Guinness-worthy record of deporting mostly low-level immigration violators, while these anti-immigrant measures had been fueled by his naive and ultimately unfounded hope that the GOP would therefore engage with him on comprehensive immigration reform.

Historians will no doubt point to his many missed immigration opportunities, and downgrade his proclamation of several well-intentioned Executive Actions in late 2014 that, by the end of Term Two, have produced less-than-half-a-loaf results.

His immigration outcomes, as detailed below, will ultimately be seen as having violated the apt medical injunction (“First, do no harm), while also calling to mind Walter Mondale’s disparaging query (“Where’s the beef?”).

Alas, he will be remembered – quite unfortunately – for these immigration bungles and stumbles (most of which have been reported in this blog):

Broken promises on comprehensive immigration reform during first year in office when Dems ruled.

A failure of oversight of federal departments and components responsible for decisions whether to grant or approve requests for immigration benefits such as work visa status, work permission and lawful permanent residency.

High-flown promises on Executive Actions but no holding of immigration bureaucrats’ feet to the fire, with (as noted) more stringent and less generous outcomes on immigration benefits.

New, stricter rules and proposals on L-1B visa eligibility international entrepreneurs, and adjustment of status portability.

The absence of anything resembling true “Visa Modernization.”

The failure to publish comments on draft policy memorandums so that the public would know what other commenters had proposed

An out-of-control Administrative Appeals Office which engages in ex parte discussions on policy with USCIS engineered and which orchestrated the highly disruptive, outrageously expensive and wholly unnecessary ruling in Matter of Simeio.

Failure to pursue APA rulemaking for DACA/DAPA which formed the basis for his district court loss in Texas v. United States.

The Justice Department’s haughty insistence on finalizing without virtually no change its harsh antidiscrimination rules which tip the scales of justice in favor of DOJ attorneys, allowing them to enforce strict liability claims and unlawfully broaden the population of individuals protected against citizenship status discrimination to include noncitizens.

***

At least one recent good thing, however, makes me happy – his elimination of the discriminatory NSEERS (National Security Entry-Exit Registration System) which intentionally targeted nationals of countries with predominantly Muslim populations.

In the final analysis, I like and admire President Obama, but not much for his immigration policies and misguidedly tolerated practices. I clearly was naive to have hoped for far more enlightened activism on immigration from a man whose Kenyan father was hounded out of the United States by the Immigration and Naturalization Service and Harvard for dating a white woman.

[Blogger’s Note: Today is the last day to submit comments to the Justice Department on its proposed rule which would modify its immigration-related antidiscrimination regulations, which are enforced by the Office of Special Counsel for Unfair Immigration-Related Employment Practices (the Special Counsel). The proposal’s fine print reveals that DOJ’s effort is in essence an unlawful power grab that would expand the time for the Special Counsel to file a claim before an Administrative Law Judge from 180 days to five years, strengthen the government’s hand in proving its case, and strip employers of legitimate defenses. My colleague, Maura Travers, and I drafted a comment which lays out why this grab for power should be stopped. Today, on behalf of the Alliance of Business Immigration Lawyers, I submitted the following ABIL comment without the caption and byline of this post. Stay tuned for the final rule. Meantime, see all public comments here. Comments of the American Immigration Lawyers Association and the U.S. Chamber of Commerce are accessible at the preceding links.]

This comment will respond to your Notice of Proposed Rulemaking entitled Standards and Procedures for the Enforcement of the Immigration and Nationality Act, 81 Fed. Reg. 53965 (the proposed rule). I submit this comment on behalf of the Alliance of Business Immigration Lawyers, of which I am a member, and in my capacity as a lawyer who has litigated numerous administrative claims of unfair immigration-related employment practices. The views I express are those of ABIL and me, and do not necessarily reflect the opinions of any other person or entity.

ABIL is comprised of 19 of the top U.S. business immigration law firms and practice groups, each led by a prominent member of the U.S. immigration bar. ABIL member firms employ over 250 attorneys (700+ total staff) devoted to business immigration in 25 major U.S. cities, and 25 international destinations. A number of our ABIL members have served as a past President or as members of the Board of Governors of AILA (the American Immigration Lawyers Association), the 11,000-member organization comprised of most U.S. immigration lawyers. Our ABIL lawyers are also immigration law professors at prominent law schools, and have written well regarded immigration treatises and textbooks. ABIL regularly comments on proposed rules and draft agency memoranda.

As explained below, the proposed rule, without adequate or convincing justification, would inter alia unlawfully expand the class of individuals protected against citizenship status discrimination to include all non-citizens, and unfairly expand the liability of employers and other respondents alleged to have engaged in unfair immigration-related employment practices. These changes contravene the statutory text and the legislative history of the governing statutes, and would impose unreasonable burdens on employers, even though an employer’s actions were not motivated by immigration-related animus or hostility. The proposed rule would also substantially expand the authority of the Special Counsel to investigate allegations of immigration-related unfair employment practices and the time periods within which individuals and the Special Counsel must file complaints against employers with the Office of the Chief Administrative Hearing Officer (OCAHO).

Overly Broad Proposed Definition of Citizenship Status. Proposed 28 CFR § 44.101(c) would provide a new definition of the phrase “citizenship status” found in Immigration and Nationality Act (INA) § 274B [codified at 8 U.S.C. § 1324b] to mean “an individual’s status as a U.S. citizen or national, or non-U.S. citizen, including the immigration status of a non-U.S. citizen.” By statute, however, the protection against citizenship status discrimination only applies to certain protected individuals, not to all non-citizens. Protected individuals under § 274B include only U.S. citizens, certain lawful permanent residents who are taking timely steps to become U.S. citizens through naturalization, and persons granted classification as refugees, asylees or temporary residents under IRCA’s 1986 legalization program (assuming that such temporary residents still exist).

The citizenship-status definition should not be expanded to include all non-citizens but only to persons who are protected individuals under INA § 274B. Thus, the definition must be narrowed so that, as revised, it would expressly exclude the following foreign nationals (1) lawful permanent residents who have not timely pursued naturalization, (2) applicants for asylum or refugee status, and (3) foreign citizens in the United States, with or without a particular legal status, who are not “protected individuals” under § 274B.

The Department of Justice (DOJ) offers Kamal-Griffin v. Cahill Gordon & Reindel, 3 OCAHO no. 568, 1641, 1647 (1993), as justification for the inclusion of all non-citizens in the proposed definition of citizenship status. That decision, however, is inapplicable because the supposed proposition for which the Special Counsel cites the case is obiter dictum — given that the claimant, Ms. Kamal-Griffin, was a U.S. lawful permanent resident. As a result, this case only provides justification for limiting the class of non-citizens to persons who are statutorily protected against citizenship status discrimination, including lawful permanent residents such as that claimant. In Kamal-Griffin, the Administrative Law Judge stated:

IRCA’s legislative history makes clear that Congress intended the term “citizenship status” to refer both to alienage and to non-citizen status. The House of Representatives Committee on the Judiciary (“Committee”), recognizing the importance of an authorized individual’s right to work, stated its rationale for prohibiting employment discrimination based on citizenship status:

The Committee does not believe barriers should be placed in the path of permanent residents and other aliens who are authorized to work and who are seeking employment particularly when such aliens have evidenced an intent to become U.S. citizens. It makes no sense to admit immigrants and refugees to this country, require them to work and then allow employers to refuse to hire them because of their immigration (non-citizenship) status. Since Title VII does not provide any protection against employment discrimination based on alienage or non-citizen status, the Committee is of the view that the instant legislation must do so.

Clearly, then, Kamal-Griffin stands for the proposition that only narrowly prescribed categories of non-citizens are eligible to assert citizenship status discrimination, namely, lawful permanent residents, refugees and asylees. Accordingly, the definition of citizenship status should be correspondingly narrowed to exclude non-citizens who are not “protected individuals” under § 274B.

Proposed Elimination of Burden on Special Counsel to Prove Animus or Hostility. Among the most pernicious amendments to the current regulation sought by the DOJ in the proposed rule would hold employers liable for citizenship status discrimination if they treat employees or applicants for employment differently based on their immigration status, regardless of whether there is proof of animus or hostility involved. The proposed rule would amend the discriminatory intent requirement by incorporating the term “discriminate” as the term is allegedly now defined in § 274B following enactment of § 421 of IIRIRA in 1996. The proposed rule seeks to clarify that “discrimination means the act of intentionally treating an individual differently, regardless of the explanation for the discrimination, and regardless of whether it is because of animus or hostility.”

The Special Counsel’s position seems to be that the DOJ must merely prove that the employer intended the natural and foreseeable consequence of its actions and that essentially violations can be found on virtually a strict liability basis. That position is incompatible with the current regulation and the cases interpreting INA § 274B. To establish a violation under applicable case law, the Special Counsel must prove that an employer knowingly and intentionally discriminated on the basis of citizenship status.

The regulations interpreting INA § 274B provide:

(a)(1) General. It is an unfair immigration-related employment practice for a person or other entity to knowingly and intentionally discriminate or to engage in a pattern or practice of knowing and intentional discrimination against any individual (other than an unauthorized alien) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment-

Because of such individual’s national origin;

In the case of a protected individual, as defined in 44.101(c), because of such individuals’ citizenship status.

The cases discussing the statute and regulations make clear that a specific, discriminatory intent must motivate any alleged violation of anti-discrimination provisions of INA § 274B.

Instructive is the case of U.S.A. v. Diversified Technology & Services of Virginia, Inc., 9 OCAHO 1095 (2003). In that case, the Special Counsel maintained, just as in the proposed rule, that “intentional discrimination does not require proof that the employer subjectively harbored some special, hostility, toward the protected group, only that the employment decision was premised upon the protected characteristic.” Diversified Technologies, 9 OCAHO 1095. The Administrative Law Judge (ALJ) rejected that analysis, finding instead that

The adverse decision must be shown to have actually been made by reason of, on account of, or on the basis of the protected characteristic. . . . This means at a minimum that there must be a factual basis upon which a rational fact-finder could infer a causal connection; the nexus cannot be established just by a formulaic assertion that the protected characteristic was the reason.”

Id. at 19. (Emphasis added.) The court also ruled:

Congress did not intend that all mistakes in the verification process should give rise to penalties under § 1324b either; by amending 1324(b)(a)(6) in the manner it did, Congress has specifically instructed us that errors in carrying out documentary inquiries for purposes of § 1324a compliance can now be penalized under § 1324 only where there is a showing that there actually was a discriminatory intent.

Id. at 21 (emphasis added). See also, Ondina-Mendez v. Sugar Creek Packing Co., 9 OCAHO 1085 (2002) (holding that “[t]he addition of the intent requirement means that now an employer may avoid liability if the employer can present persuasive evidence that its request for additional documents, its refusal to accept verification documents that appear genuine on their face, was made for legitimate reasons not attributable to discrimination.”)

Given these decisions, the proposed rule should be revised so that the Special Counsel must still present direct evidence of a discriminatory intent, hostility or animus in order to establish a violation of the statutory protection against citizenship status discrimination.

Unjustifiable Expansion of Time Periods for Investigation and Deadlines to File Complaints. Under the current regulations at 28 CFR § 44, an individual or an organization may file a charge with the Special Counsel within 180 days of the alleged occurrence of an immigration-related unfair employment practices. If the Special Counsel receives a charge more than 180 days after the alleged occurrence, the Special Counsel must dismiss the charge with prejudice.

The proposed rule would vastly expand the Special Counsel’s investigatory timeframe by granting the Special Counsel discretion to apply the principles of “waiver, estoppel, or equitable tolling” to investigate charges filed beyond the 180-day filing deadline. These expanded “equitable” provisions provide the Special Counsel with immense leeway to obviate the statutory 180-day filing deadline found in INA § 274B.

As provided in § 274B and 28 CFR § 44, the Special Counsel must undertake an investigation of a charge and file a complaint before an administrative law judge (ALJ) within 120 days of receipt of the charge. If the Special Counsel declines to file a complaint, the charging party must file a complaint with an ALJ within 90 days after receipt of the Special Counsel’s letter of determination.

Under the proposed rule, however, the Special Counsel will not be bound by the statutory time limits that are applicable to individuals filing private actions. The Special Counsel’s authority to file a complaint based on a charge by a complaining party would be subject to the “equitable limits on the filing of a complaint.” In other words, the Special Counsel would have up to five years to file a complaint with the Office of the Chief Administrative Hearing Officer (OCAHO).

As a practical matter, the elimination of the current deadlines, quite foreseeably, would be extremely burdensome and disruptive to employers who are asked to produce documents for inspection during an investigation — including Employment Eligibility Verification Forms (Forms I-9) — up to five years after an alleged occurrence. Under the current U.S. Citizenship and Immigration Services I-9 regulations, employers are only required to retain Forms I-9 for terminated employees for a maximum of three years after the date of hire or one year after the date of termination, whichever is later.

Even more troubling, the proposed rule would inexplicably eliminate the current 180-day limit within which the Special Counsel may file a complaint alleging an unfair immigration-related employment practice with the OCAHO. In making this proposal, the DOJ does not explain why it is no longer reasonable to continue with the current rule which was found acceptable to the Department in 1987, as shown in the excerpt from the Supplementary Information accompanying the current rule:

Section 44.304 Special Counsel acting on own initiative.

Section 44.304(b) has been amended in the final rule to limit the period of time in which the Special Counsel. on his or her own initiative. may, investigate and file a complaint of an unfair immigration-related employment practice. We believe that requiring a complaint to be filed within 180 days of the occurrence of an unfair immigration-related employment practice is a reasonable implementation of the desire of Congress reflected in 8 U.S.C. 1324b(d)(1), (3), to place a time limit on the actions of the Special Counsel.

52 Fed. Reg. 37402, 37409 (Oct. 6, 1987). (Emphasis added.)

Accordingly, these proposed changes unjustifiably expanding the time periods for investigation and the deadlines to file complaints, should not be adopted. The current rule should stay the same. If in a given case equitable principles ought to be applied to extend these time periods, then the decision to do so should be reposed solely in the discretion of the Administrative Law Judge based on the evidence presented.

Misleading Change of Definition of Charging Party. The proposed rule contains an amended definition of the term “charging party.” It would replace the word “individual” with the term “injured party.” The DOJ maintains that the changed term is merely undertaken “in order to simplify the regulatory text.” The definition of charging party should remain as it now is or be clarified to eliminate the impression, even if only subliminally, that an individual filing a claim has been “injured.” Use of the phrase, “injured party,” will then likely appear in every OCAHO published decision where a person files a claim, even in cases where an Administrative Law Judge has dismissed the claim as unproven. The mere assertion of injury is insufficient to be given the designation of “injured party.” This term in the definition should remain the same or be changed to a neutral term, such as “claimant.”

* * *

For these reasons, Attorney General Lynch, you should reject the Special Counsel’s proposed changes to the current regulations. The changes reflect the unlawful and unfair placement of the government’s finger on the scales of justice. When Congress enacted INA § 274B, and amended it with the enactment of IIRIRA, it could never have been envisioned that the 1996 limitations on the authority of the Special Counsel would be used as justification for a wholesale expansion of governmental power and the regulatory elimination of lawful defenses that employers may assert before an ALJ. The scales of justice are in equipoise. They should remain that way.

The Department of Homeland Security, through its component agency, U.S. Citizenship and Immigration Services (USCIS), has issued a proposed regulation to allow a qualified foreign citizen to gain entry and be employed in the United States if he or she will engage in activities that are likely to “increase and enhance entrepreneurship, innovation, and job creation in the United States” with a “start-up” entity. The USCIS proposed regulation would not change any other means of gaining work permission under the existing employment-based visa categories, e.g., the EB-5 immigrant investment program, immigrant visa classifications based upon, or exempt from, PERM labor certification, or through family-based immigration avenues.

Under the Immigration and Nationality Act, parole (an immigration “term of art” having nothing necessarily to do with the criminal laws) is a discretionary grant of permission to enter the U.S. under narrowly prescribed terms. Parole is not a formal “admission” to the country but a specially permitted “entry.” Unlike a green card or work visa — both of which are considered a legal “status” in the United States — parole can be automatically revoked by immigration officials without mandatory notice to the parolee. USCIS proposes that once the application for entrepreneurial parole is approved, the applicant and family members must leave the U.S. in order to be granted parole; they may not change to a nonimmigrant status within the United States.

USCIS proposes an initial two-year grant of parole to a qualifying “International Entrepreneur,” with one additional three-year renewal allowed. Under the proposal, the entrepreneurial parolee may work only in a start-up entity formed within the last three years in which s/he (a) will play a “central role in the operations and future growth of the entity,” and (b) owns at least a 15 percent interest. USCIS also proposes that the parolee’s spouse and children may be given parole entry, and that the spouse can be granted open-market employment authorization. The entrepreneurial parolee, however, may only be employed by the USCIS-approved start-up entity. USCIS also proposes to amend its Form I-9 (Employment Eligibility Verification) to allow a start-up entity to accept an original foreign passport and Form I-94, issued by U.S. Customs & Border Protection with the notation “PE-1,” as a “List A” document of identity and employment authorization.

The pre-publication version of the rule and its preamble run to 155 double-spaced pages. Once it is published in the Federal Register, expected in the next few days, the public will have 45 days to offer comments. Proving eligibility as an International Entrepreneur will require a $1,200 filing fee, completion of an Application for Entrepreneur Parole (Form I-941) and the submission of extensive evidence. USCIS will review the evidence and give a thumbs-up approval or deny the application with no right of rehearing or appeal.

In order to qualify, the parole applicant must show that the start-up entity has the “substantial potential for rapid growth and job creation.” This can be established through investments from established “U.S. investors (such as venture capital firms, angel investors, or start-up accelerators).” The parole applicant may prove this with evidence that the “entity has received investments of capital totaling $345,000 or more from established U.S. investors with a history of substantial investment in successful start-up entities.” USCIS proposes that aside from the parole applicant, only U.S. citizens and lawful permanent residents (green card holders) may invest in the start-up. A start-up entity may employ no more than three entrepreneurial parolees, according to the USCIS proposed rule.

Alternatively, the proposed rule suggests that the submitted evidence should include proof of grants or awards of at least $100,000 from local, state or federal government entities that have “provided support for economic, research and development, or job creation purposes.”

Venture capitalists and foreign entrepreneurs — who have waited since November 2014 to see how USCIS would articulate President Obama’s Executive Action announcing a proposed rule — are likely to be disappointed. They may see the benefit of entrepreneurial parole as too small and too short in duration in return for the effort to establish the proposed rule’s very burdensome and narrow requirements. Moreover, they may be disappointed to learn that the USCIS proposal fails to take into account the harm associated with a revocation of parole (whether based on material business changes or otherwise) and the absence of any administrative or judicial review. Also disappointing is the realization that the proposed regulation offers no pathway to lawful permanent resident status.

Fortunately, however, if USCIS receives compelling and substantiated comments within the next 45 days, the final rule may become a more viable avenue to jump-start innovation, job creation and economic growth. Only time will tell.

About Angelo

The grandson of Italian immigrants, Angelo is recognized by his peers and the public as a scholar and leader in immigration law and a passionate advocate for the rights of immigrants, U.S. citizens, and organizations petitioning for immigration benefits.

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About Angelo

The grandson of Italian immigrants, Angelo is recognized by his peers and the public as a scholar and leader in immigration law and a passionate advocate for the rights of immigrants, U.S. citizens, and organizations petitioning for immigration benefits.